Collett v. Public Service Commission , 116 Utah 413 ( 1949 )

I concur in the results and generally in the reasoning.

I am not prepared to say that where one holder of a certificate of convenience and necessity drops out and causes another to be substituted for him that the commission should not, on objection of competitors, be convinced that there still remains business enough for all the remaining certificate holders. For instance, oil or ore hauling are typical cases where feast periods may be followed by famine periods. As says the opinion, neither is the commission nor are we officially interested in aiding a carrier to come out whole or cash in on his good will, but instead in the matter of service to the public, although we recognize that if the primary consideration is satisfied, it would encourage motor contract and common carriers to know that the good will they had built up by giving satisfactory service over the years would not go for naught. However, they take that risk. If the situation were such that there was not sufficient business for the protestants, I would think that the commission would have not only the right, but the duty to refuse this transfer and deny Lang a certificate of convenience and necessity. I agree that in this case and in certain other cases the commission might take administrative notice of the fact that there was ample business for all, especially when the protestants did not claim otherwise. What I have just said is not the same as saying that the Public Service Commission can take judicial or official notice of the existence of public convenience and necessity based upon evidence in a prior hearing in a related case, although the commission could take official notice of its own public acts and administrative notice of facts which it does know because of its administrative familiarity with them. See "Official Notice, K.C. Davis, page 540, Vol. 62, Harvard Law Review, February, 1949.

A word about the really substantive and important part of this case expressed by the prevailing opinion in this wise, "The matter that divides the parties is really that of competition" and in this statement as the real reason for opposing the transfer, I agree. But I do not wish to be interpreted as holding that the protestants are merely selfishly trying to keep out competition. What they fear is that a big and powerful operator such as Lang will by efficient methods, its organization, money, influence and credit which it commands, drive out the smaller operators. I am not without sympathy for their position and understanding of their fears. For it affects our economic system and the social philosophy back of it.

Behind the simple questions of Lang Company's financial responsibility and ability to operate as a common motor carrier, the burden on the highways, the immediate public interest in having convenient and adequate service, and local problems affecting a very small segment of our economy, lurk the large and age-long conflicts between warring views of proper public policy. Should the tendency in motor carriage of commodities toward monopoly be checked, and regulated competition be encouraged, or should motor carriers finally go the way of the railroads or even more toward the natural monopolies such as gas, power, light and telephone utility companies? And this conflict is simply a phase of the eternal struggle going on in our economy between the little business men and the giant corporations. It was illustrated by the losing fight the neighborhood grocer carried on against the chain stores with their mass buying and consequent lower prices to the consumer. They not only affect prices and our economy, but have profound social consequences. An economy of small farms and farmers, small businessmen and artisans leads to one sort of culture. An economy of large corporations, large plantations, great aggregations of capital leads to another. I need only call attention to the fact that what the protestants are trying to bring into the spotlight is, that involved in this situation is a small part of a broader and more fundamental struggle of the little fellow against the bigger fellow and still bigger giant. Laissez faire is not coterminous in meaning with competition. Laissez faire is the handmaiden of monopoly, enabling the powerful to crush or merge or absorb its smaller rivals. But I cannot see that the commission can take into account these more ultimate economic consequences. It must be limited to the more immediate questions and the more immediate and local factors. Will the continuation of the same or even less number of competitors adequately cover the field; for more healthy competition should one or more be eliminated at this opportunity, or should the public for more adequate service have more competition, and if so, where is the limit after which competition will cause its own demise? These are the immediate and sufficiently complicated questions on a geographically local level. And if those questions have been answered by the commission not unreasonably in view of the evidence and known factors, it has performed its duty and we cannot interfere. Back of all of these local questions are the large and broad questions of national and regional economic policy, too broad and to profound to be solved on a local level.